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Friday, February 12, 2016

This Valentine’s day is particularly sweet for the
plaintiff-employee bar, as the Fourth Circuit repeatedly, in recent times, has
been issuing opinions that are quite favorable to employees. We review a dozen such opinions, maybe better
described as a dozen “red roses” or a dozen chocolate coated strawberries:

Our first case is Cruz
v. Maypa, 773 F.3d 138 (4th Cir. 2014) in which Judge Gregory, writing for
the panel, held that the failure to post the DoL-issued notice of FLSA rights
in a conspicuous place in the workplace can result in the tolling of the FLSA
statute of limitations. In doing so, the
Court was reaffirming its holding in Vance
v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983), in which a panel of that
Court had found the 180-day filing requirement of ADEA was tolled by reason of
the employer’s failure to post the statutory notice of rights under ADEA. In addition to the foregoing holding, the
panel also held that when a statute of limitations is extended by the
legislature, unless the legislature explicitly states otherwise, the extension
applies retroactively to any claim under the statute at issue that had not
expired under the old limitations statute at the time the legislation extending
the statute was enacted.

Our second case is Lorenzo
v. Prime Commc’ns, L.P., 806 F.3d 777 (4th Cir. 2015), in which Judge
Niemeyer, writing for the panel, held that an arbitration clause contained in
an employee handbook that also contained a contractual disclaimer was
unenforceable under North Carolina law.
In addition, the Court held that a class-action certification order is
appealable under Federal Civil Rule 23(f) only if the interlocutory appeal is
filed within fourteen calendar days of the entry of the class certification
order. In Lorenzo, counsel mistakenly filed seventeen days after the entry of
the order, apparently thinking that the client got three extra days for
“service”. The Court emphasized that the
language of Rule 23(f) does not permit the three additional days, as time runs
from the entry of the order, not from any form of service. Of course, the appeal is ultimately
permissive, as the Court of Appeals must grant permission to review if an
interlocutory appeal request is timely made.

Earlier, in 2013, the Court, Judge Davis writing for the
panel, in Noohi v. Toll Bros., 708
F.3d 599 (4th Cir. 2013), applied Maryland law to hold that a one-sided
arbitration agreement lacked mutuality of consideration. There, in a non-employment case, the
purchaser was required to arbitrate disputes, but the seller was not. In so doing, the Court relied on Cheek v. United Healthcare of Mid-Atl., Inc.,
378 Md. 139, 835 A.2d 656 (2003) (holding that an “employer’s unfettered
discretion to change the arbitration agreement rendered its promise to
arbitrate illusory.”)

Our third case is Pryor
v. United Airlines, Inc., 791 F.3d 488 (4th Cir. 2015). In Pryor,
the Fourth Circuit, with Judge Gregory writing for the panel, held that the
employer could be held liable for a hostile work environment created by an
anonymous harasser. Here, an
African-American flight attendant received a racist death threat anonymously
left in her company mailbox. She alleged
that United failed to adequately respond.
The panel reversed Judge Brinkema, of the Eastern District of Virginia,
who had granted summary judgment, and remanded to the lower court for further
proceedings. Earlier, in 2014, in Freeman v. Dal-Tile Corp., 750 F.3d 413
(4th Cir. 2014), Judge Shedd, writing for the panel with Judge Niemeyer
concurring in part and dissenting in part, the Court denied the employer’s
motion for summary judgment in a Title VII and Section 1981 race and gender
hostile work environment case, holding that there was a triable issue of fact
as to whether the employee was repeatedly subjected to unwelcome statements and
conduct by a customer, which created an abusive atmosphere, of which the
employer should have known and to which the employer failed to adequately
respond.

Our fourth case is Jacobs
v. N.C. Admin. Office of the Cts., 780 F.3d 562 (4th Cir. 2015). In Jacobs,Judge Floyd, writing for the panel,
held that the employer had not properly accommodated the plaintiff’s
disability, social anxiety disorder. In
doing so, the Court made a number of important holdings, including:

“Interacting with others” is a major life
activity;

The amended ADA rejected, as imposing “too high
a standard” the old rule that to prove a disability, one needed to show that
the plaintiff was “significantly restricted” in a major life activity. Here, the Court held: “A person need not live
as a hermit in order to be ‘substantially limited’ in interacting with others”;

Temporal proximity of three weeks, alone, can
establish causation;

Piling on can be proof of pretext where, as
here, the defense stated multiple reasons for termination at the time of
termination, and then added more before EEOC, and yet more before the district
court;

The failure to document may be evidence of
pretext. As the Court noted here: “Even
more striking is that no one at the [employer] documented any of the
justifications (including those raised at the time of termination) in any way”;

The Court permitted surreptitious tape
recordings into evidence, and heavily relied upon them in finding genuine
factual disputes;

A reasonable accommodation may require job
restructuring; and

A failure to discuss Plaintiff’s accommodation
request could be found to be an act of bad faith.

Our fifth case is Reyazuddin
v. Montgomery Cnty., Md., 789 F.3d 407 (4th Cir. 2015), in which Judge Diaz
wrote for the panel. In this
Rehabilitation Act case, under Section 504 thereof, a blind employee challenged
the manner in which the County utilized software in a new call center, software
that was not accessible to blind employees.
Summary judgment having been entered below, the panel found that the
lower court, on remand, should further explore the undue hardship defense put
forth by the County. In addition, there
is one subsidiary holding favorable to the defense in which the Court held that
public employers are not subject to suit for disability employment
discrimination under Title II of the ADA.

Our sixth case is Butler
v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404 (4th Cir. 2015),
Judge Floyd writing for the panel. In Butler the Court held that Title VII
provides for joint employer liability.
In so holding, the Court articulated the so-called “hybrid” test for
joint employment.

Our ninth case is DeMasters
v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), a highly unusual case in
which all members of the Fourth Circuit recused themselves and a panel composed
entirely of judges from the Third Circuit heard the case. Judge Krause, writing for that panel,
rejected the so-called “Manager Rule”, a rule invoked by management to prevent
an employee whose job responsibilities include reporting discrimination claims
from seeking protection under Title VII’s anti-retaliation clause.

Our tenth case is Bland
v. Roberts, 730 F.3d 368 (4th Cir. 2013) in which Chief Judge Traxler, wrote
for the majority (Judge Hollander concurred in part and dissented in part) and
held that, where a sheriff refused to reappoint one of his deputies because the
deputy had “liked” his opponent on Facebook, the Facebook “like” constituted
“pure speech” and a form of “symbolic expression” which was protected under the
First Amendment.

Our eleventh case is Summers
v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014), Judge Motz writing
for the panel, held that the Congress, amending the ADA, intended to cover
temporary disabilities, thus permitting the plaintiff, who had been injured
while exiting a commuter train on the way to work, to proceed with his ADA
case.

Our twelfth case is Boyer-Liberto
v. Fontainebleau, 752 F.3d 350 (4th Cir. 2014), reh’g en banc 786 F.3d 264 (4th Cir. 2015). Judge King writing for twelve judges, with
Judge Niemeyer dissenting writing for three judges, held that a co-worker’s use
of the epithet “porch monkey”, standing alone, was sufficiently severe such
that a reasonable jury could find there to be a racially hostile work
environment.

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About Me

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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